Court of Appeals of Arizona, First Division, Department C
Appeal from the Superior Court in Coconino County Cause No. S0300CR201200090 The Honorable Mark R. Moran, Judge
Thomas C. Horne, Attorney General By Joseph T. Maziarz, Chief Counsel Criminal Appeals/Capital Litigation Section Craig W. Soland, Assistant Attorney General Attorneys for Appellee Phoenix
The Law Office of Kyle T. Green P.L.L.C. By Kyle Green Attorneys for Appellant Mesa.
DIANE M. JOHNSEN, Chief Judge
¶1 Roberto Alejandro Salamanca argues the superior court erred by admitting two text messages he sent moments before he crashed his car into another vehicle, fatally injuring the other driver. We affirm the court's ruling that one text message was intrinsic to the charged crimes and conclude the other was admissible pursuant to Arizona Rule of Evidence 404(b).
FACTS AND PROCEDURAL BACKGROUND
¶2 Driving along Route 66 toward downtown Flagstaff, Salamanca weaved in and out of traffic at about twice the posted speed limit. He lost control of his sport utility vehicle, which fishtailed across five lanes into oncoming traffic, colliding head-on with another vehicle. Witnesses quickly called 9-1-1. The other driver died of injuries sustained in the collision.
¶3 Breath and blood samples taken shortly after the collision revealed Salamanca had alcohol levels of more than twice the legal limit. A cell phone found on the floorboard below the front passenger seat of Salamanca's SUV showed two text messages were sent from the phone shortly before authorities received the 9-1-1 call. The first message said, "I hope u die fuckwn stupid puycj"; the second, "Fuck u stupid bitch." Both texts were sent to Salamanca's girlfriend, with whom he had argued the night of the collision.
¶4 Salamanca was charged with second-degree murder, failure to remain at the scene of an accident involving death or personal injuries, underage consumption of liquor, criminal damage and two counts of driving under the influence. Before trial, the State moved to admit the two text messages, arguing they were intrinsic to the charged acts and demonstrated that Salamanca was angry and distracted at the time of the collision. The State also moved to admit evidence that within a year before the collision, Salamanca had completed a defensive driving program that included information about the dangers of speeding and driving while intoxicated.
¶5 The court granted both motions but directed the State to refrain from mentioning the words "driving school" or the reasons Salamanca took the driving class. At trial the two text messages were admitted and the jury was read the following statement:
In order to satisfy Arizona's driver's license requirements, Roberto Salamanca was required to take and pass a test which covered driver's safety issues. The test materials included the following warnings about the risks of driving while impaired: "Alcohol and driving do not mix. The driver who drinks causes accidents, injuries and death. Driving is a serious business that requires the ultimate in skill and judgment, both of which are diminished through consumption of alcohol. Alcohol seriously reduces your reflexes, physical control over the vehicle, and ability to recognize dangerous situations. These combined physical affects make the . . . drinking driver a dangerous driver."
... The test materials included the following warnings about the risks of speeding: "speed kills. For every 10 miles per hour over 50 miles per hour the risk of death in a traffic crash is doubled."
¶6 The jury convicted Salamanca of manslaughter, driving under the influence of alcohol, driving under the extreme influence of alcohol, leaving the scene of an accident, underage consumption of alcohol and criminal damage. He was sentenced to a total of 22.5 years in prison.
¶7 Salamanca timely appealed his convictions. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (2013), ...